Urgotech (hereinafter “Urgotech”), a French simplified company (SAS) registered in the Paris Trade and Companies Register under number 532 599 578, whose registered office is located at 15 Avenue d’Iéna, 75116 Paris, has developed and markets a product connected to an application called “URGOnight” in the wellness and health sector, that may be used on various devices (such as smartphones, tablets, etc.) by the general public.
You are authorised to use the Application for personal purposes, once You have read and understood the features of the Product on the Play Store or App Store.
Article 1. DEFINITIONS
The terms defined below are assigned the following meanings, whether used in the singular or the plural:
“Action”: means any action performed by You from the Application or from your Account or a Device and, in particular, any browsing of the Application or the Device, including via your Account, any consultation of information accessible from the Device or the Application, any storage of any information on the Application or on the Device, any access to the Device or the Application and any action performed using the features available in the Application.
“Application”: means the interface accessible from the Devices, such as smartphones and tablets, allowing You to access your Account via those Devices and, accordingly, to monitor the use of the Products and, more generally, use the features offered by Urgotech in connection with the use of the Products.
“Account”: means your own personal account created at the time of registration, which may be accessed from the Application.
“Data”: means all information provided by You through the Application, your Account and the Products, about You or about minors represented by You as their legal representative or guardian. You represent and warrant that You will provide all information and data to Urgotech, in an up-to-date, accurate, identifying and comprehensive manner, when marked as mandatory.
“Instructions”: means all information accessible from the Application about the Products or supplied with the Products directly.
“Products”: means the smart object providing brain training for better sleep, called URGOnight and distributed by Urgotech, which collects information and measurements from You or the minors represented by You as their legal representative or guardian (such as activity and sleep) in order to complete and record your Data.
“Applicable Regulations”: means all current and future regulations and rules applicable to You and the Application and, in particular, the personal data protection regulations including the EU regulation on the protection of personal data (“General Data Protection Regulation” or “GDPR”).
“Device”: means the various means of accessing the Application for each relevant operating system. In particular, the Devices refer to smartphones and tablets using an Apple or Android operating system.
“You”: refers to natural person users registered and authorised to access the services of the Application.
Article 2. PURPOSE
Article 3. ACCEPTANCE / AMENDMENTS
BY DOWNLOADING THE APPLICATION, YOU EXPRESSLY CONFIRM THAT YOU:
* REPRESENT AND WARRANT THAT YOU
* ARE OVER 18 YEARS OF AGE
* FOR MINORS, THE APPLICATION MUST BE ACCESSED AND USED UNDER PARENTAL RESPONSIBILITY, IN COMPLIANCE WITH THE PROVISIONS OF THE FRENCH PUBLIC HEALTH CODE AND THE MINOR’S RIGHT TO OBJECT PURSUANT TO ARTICLE L. 1111-5 OF THAT CODE. THE REPRESENTATIVE HOLDING PARENTAL RESPONSIBILITY IS RESPONSIBLE FOR THE MINOR’S USE OF THE PRODUCTS AND/OR THE APPLICATION.
The Application is primarily designed for use by adults. You are responsible for any use of your Account by third parties and any use of the Products and any collection of Data about minors represented by You as their legal representative or guardian. You also acknowledge and accept that Urgotech:
* processes the Data of minors represented by You as their legal representative or guardian, and
* may not be held liable, in particular for any use of the Application by a minor, in that respect.
These ToU may be consulted at any time online, at urgotech.fr/cgu-urgonight/
Urgotech reserves the right to amend and update these ToU without notice. You should consult the ToU regularly, to familiarise yourself with any such amendments.
Article 4. TERM
The ToU come into force and take effect when You install the Application.
The ToU will continue to apply until You permanently delete the Application.
Article 5. PREREQUISITES FOR USING, DOWNLOADING AND UPDATING APPLICATIONS
You will need to download the Application on your Device before using it. An Internet connection is required to download Applications and share data between the Application and the Urgotech servers. However, some Applications may be used offline. A high quality Internet connection and a Device with a fast, powerful processor are essential for an optimal use of the Applications. Further details about the requirements are available on the urgotech.fr website. For further information, please contact customer services.
A Device may not be compatible with the Application even if You were able to download it on the Device. Before using it, You will need to check that the Device and the Urgotech Application and/or Products are compatible. Further details about the requirements are available on the urgotech.fr website. For further information, please contact customer services.
The Application will be updated in accordance with the update policy published by the manufacturer of the Device and/or the supplier of the embedded system. You are hereby informed that Application updates may include substantial modifications to (1) the Application and/or (2) the features available in the Application. Urgotech does not warrant the continuity and availability of all features made available through the Application. In addition, the features and availability of the Application may also vary depending on your location when You download or log in to the Application.
Article 6. ACCOUNT IDENTIFICATION AND LOGIN
You may need to identify yourself through an Urgotech account in order to use the Urgotech Products and Services before any connection or access to or use of an Application. There is no charge for this process. However, You will bear any costs incurred to access or use the Application. Urgotech does not warrant that the use of the Application will remain free of charge.
If an Account is to be created, You will need to complete a set of necessary actions to prevent any third-party access to your Account. You are solely liable for any access to your Account and/or any other means made available to You to allow You to connect to the Website and/or the Applications. Any person accessing your Account may have access to your personal data.
You are liable for any connection to your Account by a third party who had been authorised to do so by You. Urgotech may not be held liable for any disclosure of personal data to one or more third parties due to any implied or express authorisation granted to them by You. If You exit the Application without logging out or fail to add a second security password, You will be deemed to have given your implied authorisation.
In order to facilitate access to the electronic system, the identification process may be automated using Cookies.
Article 7. URGONIGHT APPLICATION FEATURES
The features of the Application are described below:
The Application proposes brain training exercises using a headset that measures and sends brainwaves to the application in real time and creates animations allowing You to view changes to your activity in real time.
* acknowledge that You have read and understood those features;
* acknowledge and accept that Urgotech may modify the features of the Application at any time and at its own discretion;
* acknowledge that You have been informed that Urgotech may send You promotional information about the Products marketed by it, through the Application.
Article 8. CONDUCT
You must use the Application in a responsible manner.
Accordingly, by accessing your Account via the Application, You agree and warrant that You will:
* comply with all laws in force in the country from which You access the Application, including the Applicable Regulations;
* provide accurate, complete and up-to-date information, in particular about your identity and your contact details;
You also agree not to do any of the following, in particular:
* not to act in any way that is not permitted under the Applicable Regulations;
* not to upload any of the following to the Application and/or display, email or otherwise transfer it:
* any content whose transfer is not permitted under the Applicable Regulations;
* any unlawful, harmful, threatening, abusive, harassing, punishable, defamatory, vulgar, obscene or indecent content, any content invading a person’s privacy, any hateful or offensive content or any racially, ethnically or otherwise objectionable content;
* any content that could damage Urgotech’s image;
* any unsolicited or unauthorised advertising or promotional materials, “unaddressed admail”, “misleading information”, “chain letters”, or any other form of solicitation;
* anything containing software viruses or other computer codes, files or programs designed to interrupt, destroy or restrict the features of any computer software or hardware or telecommunications equipment.
* not to disrupt or interrupt the running of the Application or the servers or networks connected to the Application, or violate the requirements, procedures, rules or regulations of the networks connected to the Application;
* not to attempt to harm any user, host or network which includes, without any limitation, exposing the website to a virus, creating saturation, flooding the server, flooding the mailbox or forums or falsifying any TCP/IP packet header or any part of the header in any email;
* not to access data not intended for You or enter a server/account when You without being authorised to do so;
* not to attempt to probe, scan or test the vulnerability of a system, including the Application or a network, or to breach security or identification measures without authorisation;
* not to impersonate another person, in particular another user;
* not to conduct or incite a third party to conduct an illegal activity or any other activity infringing the rights of Urgotech, its partners or other users;
* not to transmit or transfer (by any means whatsoever) information or software derived from the Application, in particular to other countries or to certain foreign nationals in breach of a national or international law or regulations.
By acknowledging the global nature of the Internet, You agree to comply with all local and international rules and procedures governing online conduct and acceptable content, including all applicable laws governing the transmission of technical data.
Any program downloaded or obtained using the Application will be downloaded or obtained at your own risk. You are solely liable for any loss or damage directly or indirectly caused including, but not limited to, any damage caused to your computer system or any loss of data.
Article 9. INTELLECTUAL PROPERTY
The Application contains materials and data protected, in particular, by intellectual property rights, trademark law and other legislation in force.
Accordingly, unless provided otherwise, the intellectual property rights in and to all components of the Application (animated or still images, illustrations, photographs, sound, know-how, text, graphics etc.), including software and databases (hereinafter the “Content”) together with the Application are the exclusive property of Urgotech or a partner that has granted Urgotech the rights to use them. Urgotech does not grant any licence of all or part of the Content or any right other than the right to use the Application on the terms and conditions set out in these ToU.
Likewise, You may not:
* copy, modify, create a derivative work of, assemble, decompile (except as permitted by law), sell, assign, sublicense or transfer, in any manner whatsoever, any right in or to the Application or the Content;
* modify all or part of the Application or the Content with a view, in particular, to obtaining unauthorised access to the Application using any means other than the Application Link.
Accordingly, You may not reproduce and/or represent all or part of the Application and/or its Content without Urgotech’s prior written authorisation, as this would constitute an infringement punishable, in particular, under the provisions of the French Intellectual Property Code.
Likewise, You may not extract, via a permanent or temporary transfer to another medium using any means, or reuse by making available to the public, the entirety or a material part (in qualitative or quantitative terms) of all or part of the Application or the Content, including for private purposes.
You may not perform any repeated or systematic extraction or reuse of non-material parts (in qualitative or quantitative terms) of all or part of the Application or the Content, even for private purposes, if those operations go beyond a normal use of the Application.
Similarly, You may not perform any unauthorised reproduction of literary, musical, audio-visual or photographic works or, more generally, any work that could be protected under intellectual property law, accessible through the Application, failing which civil and/or criminal penalties may be imposed pursuant to the provisions of Article L. 122-4 of the French Intellectual Property Code, unless such reproduction is exclusively reserved for a strictly private use.
All other trademarks, logos, product names, company names and any other distinctive signs used in the Application are the property of Urgotech or its providers, partners or suppliers.
Any use, in any manner whatsoever and for any purpose whatsoever, of all or part of one or more of those trademarks requires the express authorisation of the owner of the protected sign.
Article 10. USER CONTENT
You own the intellectual property rights in and to the materials You post online, including any opinions, comments or any type of information (hereinafter the “User Content”) that You may transfer through the Application and for which You are liable.
You warrant to Urgotech that the User Content will not infringe any third-party rights and agree to hold Urgotech harmless from and against any legal action by a third party.
You acknowledge and accept that You uploaded the User Content to the Application of your own free will.
Article 11. PERSONAL DATA
No personal data is processed by Urgotech.
However, Urgotech collects anonymised data in order to improve user support and enhance the URGOnight product.
Article 12. FRAUDULENT USE
Any persons accessing the Application in a manner that is not permitted under the ToU acknowledge and accept that the ToU are nevertheless applicable to them and, in particular, accept that action may be taken against them on the basis of these ToU.
Article 13. BREACH OF USER OBLIGATIONS
You agree to hold Urgotech harmless from and against any legal action or claim, regardless of the basis, form or person at the origin of such action (for example, Users), caused in whole or in part by a breach of one of your representations, undertakings or warranties set out in the ToU (hereinafter the “Legal Action”).
As a result, You agree to bear all harmful consequences arising for Urgotech from the Legal Action, including the amount of any award issued against Urgotech in connection with the Legal Action, or the amount it agrees to pay as part of an out-of-court settlement of the Legal Action and the amount of any costs (including fees charged by experts and lawyers) incurred by Urgotech to defend its case as part of the Legal Action.
Article 14. LIABILITY
URGOTECH DISCLAIMS ALL LIABILITY AND GIVES NO WARRANTY AS TO THE ACCURACY, RELIABILITY, COMPLETENESS OR APPROPRIATENESS OF THE CONTENT OR AS TO THE RESULTS OBTAINED WHEN USING THE APPLICATION, OR AS REGARDS YOUR INTERPRETATION OR USE OF THE APPLICATION.
THE APPLICATION MAY CONTAIN LINKS TO WEBSITES MANAGED BY THIRD PARTIES. THOSE LINKS ARE PROVIDED FOR YOUR CONVENIENCE ONLY. URGOTECH HAS NO CONTROL OVER THE AFOREMENTIONED WEBSITES AND DISCLAIMS ALL LIABILITY FOR THEIR CONTENT OR OPERATION. THE INCLUSION OF LINKS TO THOSE WEBSITES DOES NOT IMPLY THAT URGOTECH APPROVES THE MATERIALS POSTED ON THOSE WEBSITES AND DOES NOT IMPLY ANY ASSOCIATION BETWEEN URGOTECH AND THE OPERATORS OF THOSE WEBSITES.
In particular, Urgotech may not be held liable for any loss directly or indirectly caused by:
* a malfunction of the Application, including a failure or bug, loss of data or Application downtime;
* any resources used by You to access the Application, including hardware and software and telecommunications networks.
In any event, if Urgotech’s liability is proven and upheld, it will be limited to one thousand (1,000) euros for all causes of action and damage combined, as is hereby acknowledged and accepted by You.
Any claim You may have against Urgotech must be filed within no more than six months of the occurrence of the event triggering its liability, which is the subject of the claim.
Article 15. GENERAL PROVISIONS
Any provisions of the ToU which by their nature or wording are intended to continue to apply after You cease to use the product, for any reason whatsoever, will continue to apply after you stop using the product.
If one or more provisions of the ToU are considered to be invalid or held to be invalid under the terms of a law or regulations or following a final decision of a competent court, the other provisions will remain in full force and effect.
If Urgotech fails to exercise, delays exercising or only partially exercises one or more rights set out in a provision of these application ToU, this may not be construed as implying a waiver by Urgotech of its right to invoke that provision at a later date or to rely on any failure by the other party to comply with that provision.
Evidence - Electronic Communications
Any notice or communication between You and Urgotech may be given or sent using any electronic means. Accordingly, You are fully aware that Urgotech may communicate information to You using any electronic, digital means that may be directly or indirectly linked to your Urgotech Account for the smart health Products and Services.
Jurisdiction - Dispute Resolution
The ToU are governed by French law. This applies for both the substantive rules and procedural rules.
THE PARTIES EXPRESSLY AGREE THAT ANY DISPUTE ARISING IN CONNECTION WITH THE VALIDITY, PERFORMANCE OR CONSTRUCTION OF THE TOU WILL BE SUBJECT TO THE JURISDICTION OF THE COURTS OF PARIS, NOTWITHSTANDING MULTIPLE DEFENDANTS OR THIRD-PARTY CLAIMS FOR INDEMNITY AND EVEN FOR EMERGENCY OR PROTECTIVE APPLICATIONS IN EXPEDITED OR EX-PARTE PROCEEDINGS. IN CASES WHERE THE LAW ASSIGNS EXCLUSIVE JURISDICTION TO THE REGIONAL COURT (TRIBUNAL DE GRANDE INSTANCE), THE PARTIES EXPRESSLY AGREE THAT THE PARIS REGIONAL COURT WILL HAVE JURISDICTION.